Unpub. BIA late-filed asylum victory: changed/extraordinary circumstances

"[W]e disagree with the Immigration Judge's determination that, since the respondent had already submitted an asylum application in [date] based upon a fear of persecution on account of his sexual orientation, his discovery of his HIV positive status in [date] could not qualify as a change in the respondent's circumstances that materially affected his eligibility for asylum (I.J. at 7-8). We find that it is a changed circumstance materially affecting his asylum eligibility. We therefore conclude that despite his arrival in the United States in 1998, the respondent should have been permitted to apply for due to his discovery of his HIV status."

Matter of X-, July 14, 2011.  [Hats off to Paul O'Dwyer!]

Another Padilla habeas victory in Texas

Marfa superstar Steve Spurgin writes: "Attached is the first published Padilla decision out of Texas' 11th Court of Appeals.  These Eastland justices understand Padilla and correctly reversed the trial court, mandating ICE's release from detention for my young LPR client - detained for over 18 months - with no other criminal history."

The Court said: "When the deportation consequence is clear, as it is in this case, the duty to give correct advice is equally clear. Padilla, 130 S.Ct. at 1483. Inasmuch as counsel did not give Salazar correct advice, we hold that Salazar has satisfied the first prong of Strickland. ... We hold that Salazar established that he was prejudiced because he would have gone to trial given the correct information about his deportation status and because a decision to reject the plea bargain in favor of a trial would have been rational under the circumstances. Consequently, we hold that Salazar satisfied the second prong of Strickland. ... [C]ounsel's duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the client's individual circumstances. ... We reverse the trial court's order denying the writ, vacate the Orders of Deferred Adjudication and Placement on Community Supervision, and remand this cause to the trial court for further proceedings so that Salazar may answer the indictment."- Salazar v. State, Aug. 31, 2011.

AAO Extreme Hardship Victory; Violence In Mexico A Factor

"According to Mr. Y, he does not know much about Mexico and when he has traveled there, he has both witnessed and personally experienced violence. The AAO takes administrative notice that the U.S. Department of State urges U.S. citizens to defer non-essential travel to parts of Mexico, including Sinaloa, where the applicant and Mr. Y contend they would live, due to ongoing violence and persistent security concerns. The U.S. Department of State recognizes that one of Mexico's most powerful transnational criminal organizations (TCOs) is based. in the state of Sinaloa. U.S. Department of State, Travel Warning, Mexico, dated April 22, 2011. Considering all of these factors cumulatively, the AAO finds that the hardship Mr. Y would experience if he had to move to Mexico is extreme, going well beyond those hardships ordinarily associated with inadmissibility or exclusion. The AAO therefore finds that the evidence of hardship, considered in the aggregate and in light of the Cervantes-Gonzalez factors cited above, supports a finding that Mr. Y faces extreme hardship if the applicant is refused admission."  Matter of X-, Aug. 10, 2011. [Hats off to Philip Hornik!]

AAO Motion Timing

Doug Stump writes: "I have seen discussion on several list serves suggesting that one only has 15 days to file a Motion to Reopen the revocation of a previously approved petition because the appeal time for such a revocation is only 15 days. The TSC asserted that very argument in the cases underlying the attached decision from the AAO.  The AAO got it right when it held the 30 days set out in 8 CFR 103.5(a)(1)(i) is applicable to revocations. Maybe this will be beneficial to others as well."

T. Douglas Stump

50 Penn Place, Ste. 1320

1900 N.W. Expressway

Oklahoma City, OK 73118

(405)879-0800

 Website: www.usvisagroup.com

Motion in Limine Victory in S.F.

Francisco Ugarte writes: "I wanted to share with folks a recent written decision granting in part our Motion in Limine, which requested procedural protections for Respondents during their suppression hearing.   While we have filed many of these procedural motions, this is the first time I have seen a written decision on these issues.  In the decision, the Court applies longstanding criminal law procedural principles, which exist in criminal suppression hearings, to immigration suppression hearings.  Similarly, the Court found that while Matter of Barcenas holds that there is no “right to a suppression hearing,” Barcenas does not preclude immigration judges from ordering a hearing designed exclusively to adjudicate the suppression motion.  The only problem is that the judge still provided DHS with an opportunity to provide additional evidence of alienage of Respondents after Respondents made a prima facie case—which, in this case, could mean more than a year after the original motion to suppress was filed.  This could present due process problems (if the evidence was in the possession of DHS but not provided to Respondents until after they fully briefed the issues).  Regardless, I believe this decision can be helpful to others dealing with suppression motions.  I’d like to thank Mike Wishnie and the Yale Immigration Clinic for providing a sample motion, which was helpful in crafting and arguing these procedural law issues."

Francisco Ugarte
Immigration Attorney, Dolores Street Community Services

San Francisco Immigrant Legal & Education Network | SFILEN

938 Valencia St.

San Francisco, CA  94110

Work: (415) 282-6209 x23

Cell:    (415) 571-3470

Fax:     (415) 282-2826

ICE reminder to local jail re 48-hr detainer rule

Craig R. Shagin writes: "I am attaching an interesting letter [dated Aug. 10, 2011] that was produced following a state habeas action I filed. It is from Director Decker reminding by Fax the Warden of Adams County Prison in Pennsylvania that he is only to hold detainees for 48 hours past the state authorized detention.  I thought this might be an important piece of evidence in any case in which it was important to demonstrate the awareness by ICE of the repeated violations of this requirement by state agencies."

Craig R. Shagin
Shagin Law Group LLC
120 South Street
Harrisburg, PA 17101  

cshagin@shaginlaw.com

Unpub. BIA Victory in TX: conviction vacated; remand

Michelle Saenz-Rodriguez writes: "Thought I would pass along a good BIA (unpublished) decision George just got on a  recent Padilla case.  The BIA does a nice job of addressing the Pickering standard and why it should be sent back to the trial court  The TA’s office had opposed the motion and the BIA reopened it Sua Sponte." Michelle L. Saenz-Rodriguez - www.sralawonline.com